Johnson v. Portland Terminal Co.

• Decision Date: 14 October 1932
• Parties: JOHNSON v. PORTLAND TERMINAL CO.
• Court: Maine Supreme Court

162 A. 518

JOHNSON

v. PORTLAND TERMINAL CO.

Supreme Judicial Court of Maine.

Oct. 14, 1932.

Exceptions from Superior Court, Cumberland County.

Action by Thomas Johnson against the Portland Terminal Company. Verdict directed for defendant, and plaintiff excepts.

Exception overruled.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and THAXTER, JJ.

Hinckley, Hinckley & Shesong, of Portland, for plaintiff.

Perkins & Weeks, of Waterville, for defendant.

PATTANGALL, C. J.

Exception to the direction of verdict for defendant. Action for damages arising from injuries claimed to have been sustained by reason of defendant's negligence in operating a shifting train with which plaintiff's automobile collided on a grade crossing.

A presiding justice at nisi prius is authorized to direct a verdict for either party in any civil case when a contrary verdict could not be sustained by the evidence. Market & Fulton Nat. Bank v. Sargent, 85 Me. 349, 27 A. 192, 35 Am. St. Rep. 376; Bennett v. Talbot, 90 Me. 229, 38 A. 112; Coleman v. Lord, 96 Me. 192, 52 A. 645. If plaintiff's evidence, given all of the force to which it could fairly be entitled, is insufficient to make a prima facie case, a verdict for defendant may properly be ordered. Heath v. Jaquith, 68 Me. 433; Jewell v. Gagne, 82 Me. 430, 19 A. 917; Lewiston Co-operative Society No. 1 v. Thorpe, 91 Me. 64, 39 A. 283. It is only when the case is doubtful and different conclusions might reasonably be drawn from the evidence that the facts should be submitted to the jury. Young v. Chandler, 102 Me. 251, 253, 66 A. 539.

Applying these recognized rules to the instant ease, plaintiff's exception must be overruled. The evidence presented is insufficient to support a verdict for the plaintiff, and it would be the duty of the court to set aside such a verdict had one been rendered.

The collision occurred at a crossing with which plaintiff was thoroughly familiar. His hours of employment were such that he usually left his place of business shortly after midnight and drove to a restaurant for lunch, returning to his apartment on the second floor of the building in which his store was located. The usual course thus traveled necessitated crossing the railroad tracks at the point where the accident occurred.

These tracks, three in number, crossed the highway at an angle and constituted part of the terminal yard. No regular trains traversed them, but frequently, both by night and day, shifting engines passed over them hauling substantial trains of cars. There was no gate at the crossing, and not always a flagman. A general rule laid down by the defendant company and appearing in its book of instructions to employees provided that "Shifters moving over public crossings when crossing flagman not on duty, or where none are stationed, must arrange for one member of the crew to properly flag the crossing; this rule will also apply to private crossings."

Plaintiff had noticed many times during the eighteen months prior to the accident the presence of a trainman at the crossing, walking ahead of an on-coming train, carrying a lantern. On the night in question, no such precaution was taken. There was, however, no difficulty in observing a train as he approached the scene of the trouble. There was an electric street light near the crossing, and plaintiff had an unobstructed view of the track after reaching a point approximately eight hundred feet distant from it, and from then on to the place of collision.

He testified that as he drove along he saw an engine standing still on the nearest track within ten or twelve feet of the highway. He did not notice any cars attached to the engine, although it is agreed that nineteen freight cars, eleven of them loaded, were so attached. He added that there were no lights on the engine or tender, that no bell was sounded, that no employees were in sight, and that there was nothing to indicate that any risk of collision would be incurred by crossing the tracks.

The evidence is clear, although plaintiff's recollection was otherwise, that the train was on the middle track. Plaintiff admits seeing the engine from the time when he was distant about eight hundred feet and continuing to observe it until within forty or fifty feet of the crossing, when he says he turned his head to watch for approaching trains in the opposite direction. He admits that during the last second or two before the collision he increased the speed of his car to fifteen or twenty...